By MISA Zimbabwe
The government on 5 July 2019 gazetted the Freedom of Information Bill [H.B. 6 of 2019].
This is the first of three official Bills meant to replace the much-criticised Access to Information and Protection of Privacy Act (AIPPA). AIPPA is the omnibus law that currently caters for access to information, protection of personal information and regulation of the media.
When passed into law, the Freedom of Information Bill is meant to give effect to the access to information provisions enshrined in Sections 61 and 62 of the 2013 Zimbabwe Constitution. Section 3(a) of the Bill reflects this when it states that one object of the Bill is, “to give effect to the right to access information in accordance with the Constitution…”
Unfortunately, despite this noble declaration, the Bill in its current state fails to give effect to either the letter or spirit of the right to access information found in Section 62 of the Constitution.
The Bill is regressive when compared to the previous draft version of the Bill shared with and discussed by stakeholders during engagement meetings held by the Ministry of Information Media and Broadcasting Services in December 2018 and March 2019. In fact, it is a total departure from most of the positions agreed upon between the ministry and media stakeholders.
The ministerial draft Bill circulated by the ministry closely resembled the African Union’s Model Law on Access to Information. However, the gazetted Bill has similarities with the condemned and outgoing AIPPA.
Few of the recommendations submitted by civil society and other access to information activists were incorporated into the gazetted Bill. This shatters government’s narrative that this Bill is the result of a valid, wide, and balanced consultative process.
Below is a summary discussion of the key provisions in the current Bill.
Scope of the Bill
This Bill will set procedures for Zimbabwean citizens and permanent residents to access information held by public institutions. It also deals with procedures for the accessing of information held by any person and private entities if such information is necessary for the exercise and protection of a right.
It also puts in place voluntary mechanisms of disclosing data and information controlled by public institutions. Private institutions, on the other hand, have the discretion to voluntarily disclose any information within their control.
This means the right to access information will apply differently to citizens and differently to non-residents and non-citizens. Yet the right to access information is a fundamental right enshrined in the Universal Declaration of Human Rights, and must therefore, be applied equally to all people.
Furthermore, there is no justification for imposing compulsory, voluntary disclosure mechanisms only on public institutions and not private entities as well. More so, when one considers the amount of information controlled by private entities such as mobile network operators, medical service providers, private financial institutions and property developers.
Just like AIPPA, the Bill also sets out the scope of limitations on the right to access information. Some of these limitations are reasonable, for example, the right to access information may not be relied on to access organisational trade secrets.
However, some limitations are not justifiable in an open and democratic society that Zimbabwe aspires to be. One such limitation is the one on access to information on government borrowing.
The Bill also sets out additional functions assigned to the Zimbabwe Media Commission (ZMC). The ZMC, will in terms of this law, be responsible for overseeing the fair application and exercise of the right to access information in Zimbabwe. Furthermore, the ZMC will receive and decide appeals against refusal of requests for the access to information.
The ZMC has been assigned this function on the strength of Section 249(1)(f) of the Constitution which says one of the ZMC’s functions is “to ensure that the people of Zimbabwe have fair and wide access to information.” On the surface, this is a valid argument.
However, it is more favourable to give the responsibility to oversee the enjoyment and exercise of the right to access information to the Zimbabwe Human Rights Commission (ZHRC). Indeed, this was the case in the ministerial draft of the Freedom of Information Bill.
In terms of Section 243(1)(a) – (d) and (f) of the Constitution, the ZHRC is tasked with the promotion, protection, development, and attainment of human rights and freedoms. These human rights and freedoms indubitably include the right to access information.
The right to access information applies to everyone and goes beyond the media fraternity. MISA Zimbabwe contends that placing the administration of such an important right under a Commission dedicated specifically to the promotion of media freedoms and rights will narrow the exercise and enjoyment of the right to access information.
MISA Zimbabwe recommends that the position espoused in the ministerial draft be restored.
Summary analysis of the Bill
Section 3(b) and 5 of the Bill seek to cultivate a culture of voluntary disclosure of information by public entities and statutory bodies. Section 5 of the Bill imposes a duty on such bodies to produce a written information disclosure policy. The rest of the Bill is silent on the practical steps necessary to enforce or strengthen these voluntary disclosure mechanisms. This is indeed disappointing.
The ministerial draft of the Bill contained comprehensive provisions on the voluntary disclosure of information controlled by public entities. MISA Zimbabwe recommends that those parts of the ministerial draft be revisited and incorporated into the current draft of the Bill.
The Bill compels public institutions to designate information officers. These are organisational officers responsible for the handling and processing of requests for information.
The Bill states that requests for information may only be in writing, this means that oral requests for information are not valid. This restriction on how information may be accessed will unjustifiably inhibit the blind and illiterate from being able to seek information.
There is no justifiable reason to restrict requests for information to written form only. The draft ministerial Bill had made provision for the submission and processing of oral requests for information. No justification is given for its removal from the current Bill.
Requests have to be finalised within 21 days calculated from the day the request is submitted. An entity may extend this turnaround period by an extra 14 days. If there is no response to the request for information within 21 days, Section 10 of the Bill regards that as deemed refusal to give the requested information. No explanation will be necessary in those circumstances.
There is no mechanism in the Bill that would prevent the abuse of these deemed refusals. The only recourse an applicant has to a deemed refusal is to appeal the refusal with the ZMC.
Appeals to the ZMC must be lodged within 30 days of the date of notification of the decision being appealed against. The Secretary of the Commission may condone the admission of late appeals, but this is at the Secretary’s discretion. The ZMC must finalise appeals within 30 days of receiving appeals.
Under the ministerial draft of Bill, the High Court was the final appellant body on issues of denied access to information requests. The participation of the High Court in this process is desirable because of the court’s ability to enrich the promotion and protection of fundamental rights including the right to access information through its pronouncements, rulings, and judgments.
The issue of miscellaneous fees that may be charged when seeking information is another clawback contained in the Bill that will ultimately inhibit the right to access information. While fees associated with making copies of requested documents may be sensible, the charging of search fees, coupled with inspection fees is not justifiable and is open to abuse in a way that actually prevents people from seeking information.
Lastly, once passed into law, this Bill will wholly repeal AIPPA. This is problematic because AIPPA is an omnibus law that also deals in part with the protection of privacy. This means that if the Freedom of Information Act repeals AIPPA before a Protection of Personal Information Act or a Data Protection Act is gazetted, that will create a gap in Zimbabwe’s data protection legislative landscape.
A gap, that based on past experience, might take years to fill given Zimbabwe’s lethargy in coming up with a data protection law that it has been working on since 2013.
In conclusion, the process to repeal AIPPA, gives government an opportunity to adopt a progressive law that reflects the principles of access to information found in the African Model Law on Access to Information and the progressive 2013 Constitution.
It is unfortunate, that government has failed to seize this opportunity to give life to constitutional provisions and international best practices on access to information issues by choosing to retain the same restrictive measures currently plaguing AIPPA.